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ATTY. CECILIO DUKA

Additional Cases in PIL-

THE CORFU CHANNEL CASE(United Kingdom v. Albania)ICJ Decision of 9 April 1949[1949] ICJ Rep. 4 The Albanian Government hascontended that the sovereignty of Albania was

violated because the passage of the British warships on October 22nd, 1946, wasnot aninnocent passage. The reasons advanced in support of this contention may besummed upas follows:The passage was not an ordinary passage, but a political mission; the shipswere manoeuvring and sailing in diamond combat formation with soldiers on board;theposition of the guns was not consistent with innocent passage; the vessels passedwithcrews at action stations; the number of the ships and their armament surpassedwhat wasnecessary in order to attain their object and showed an intention tointimidate and notmerely to pass; the ships had received orders to observe andreport upon the coastaldefences and this order was carried out.It is shown by the Admiralty telegram ofSeptember 21st, cited above, and admitted by the United Kingdom Agent, that the

object of sending the warships through the Straitwas not only to carry out apassage for purposes of navigation, but also to test Albania's attitude. As mentionedabove, the Albanian Government, on May 15th, 1946, tried to impose by means ofgunfire its view with regard to the passage. As the exchange of diplomatic notes didnot lead to any clarification, the Government of the United Kingdom wanted toascertain by other means whether the Albanian Government would maintain itsillegal attitude and again impose its view by firing at passing ships. The legality ofthis measure taken-by the Government of the United Kingdom cannot be disputed,provided that it was carried out in a manner consistent with the requirements ofinternational law. The "mission" was designed to affirm a right which had beenunjustly denied. The Government of the United Kingdom was not bound to abstainfrom exercising its right of passage, which the Albanian Government had illegallydenied. [Pg 30] In view of the firing from the Albanian battery on May 15th, thismeasure of precaution cannot, in itself, he regarded as unreasonable. But fourwarships two cruisers and two destroyers -- passed in this manner, with crews at

action stations, ready to retaliate quickly if fired upon. They passed one afteranother through this narrow channel, close to the Albanian coast, at a time ofpolitical tension in this region. The intention must have been, not only to testAlbania's attitude, but at the same time to demonstrate such force that she wouldabstain from firing again on passing ships. Having regard, however, to all thecircumstances of the case, as described above, the Court is unable to characterizethese measures taken by the United Kingdom authorities as a violation of Albania'ssovereignty. [Pg 31] After the explosions of October 22nd, the United KingdomGovernment sent a note to the Albanian Government, in which it announced itsintention to sweep the Corfu Channel shortly. The Albanian reply, which wasreceived in London on October 31st, stated that the Albanian Government would notgive its consent to this unless the operation in question took place outside Albanianterritorial waters. After this exchange of notes, "Operation Retail" took place on November 12th and

13th. Commander Mestre, of the French Navy, was asked to attend as observer,and was present at the sweep on November 13th. The operation was camed outunder theprotection of an important covering force composed of an aircraft carrier, cruisersandother war vessels. This covering force remained throughout the operation at acertaindistance to the west of the Channel, except for the frigate St. Bride's Bay, whichwasstationed in the Channel south-east of Cape Kiephali. The sweep began in the

morning of November 13th, at about 9 o'clock, and ended in the afternoon nearnightfall. The area swept was in Albanian territorial waters, and within the limits ofthe channel previously swept. [Pg 33] But, in fact, the explosions of October 22nd,1946,in a channel declared safe for navigation, and one which the United KingdomGovernment, more than any other government, had reason to consider safe, raisedquite a different problem from that of a routine sweep carried out under the ordersof the mineclearance organizations. These explosions were suspicious; they raised aquestion of responsibility. Accordingly, this was the ground on which the UnitedKingdom Government chose to establish its main line of defence. According to thatGovernment, the corpora delicti must be secured as quickly as possible, for fearthey should be taken away, withoutleaving traces, by the authors of the minelayingor by the Albanian authorities. This justification took two distinct forms in the UnitedKingdom Government's arguments. It was presented first as a new and specialapplication of the theory of intervention, by means of which the State intervening

would secure possession of evidence in the territory of another State, in order tosubmit it to an international tribunal and thus facilitate its task. The Court cannotaccept such a line of defence. The Court can only regard the alleged right ofintervention as the manifestation of a policy of force, such as has, in the past, givenrise to most serious abuses and such as cannot, whatever be the present defects ininternational organization, find a place in international law. Intervention is perhapsstill less admissible in the particular form it would take here; for, from the nature ofthings, it would be reserved for the most powerful States, and might easily lead toperverting the administration of international justice itself. The United KingdomAgent, in his speech in reply, has further classified "Operation Retail" amongmethods of self-protection or self-help. The Court cannot accept this defence either.Between independent States, respect for territorial sovereignty is an essentialfoundation of international relations. The Court recognizes that the AlbanianGovernment's complete failure to carry out its duties after the explosions, and thedilatory nature of its diplomatic notes, are extenuating circumstances for the actionof the United Kingdom Government. But to ensure respect for international law, ofwhich it is the organ, the Court must declare that the action of the British Navyconstituted a violation of Albanian sovereignty. [Pg 34-35]

THE PAQUETE HABANA, 175 U.S. 677 (1900)

175 U.S. 677

THE PAQUETE HABANA.

THE LOLA.


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Nos. 395, 396.Argued November 7, 8, 1899.Decided January 8, 1900.

[175 U.S. 677, 678] Mr J. Parker Kirlin for appellants.

Assistant Attorney General Hoyt, Solicitor General Richards, and Messrs. Joseph K.McCammon, James H. Hayden, George A. King, and William B. King for appellees.

Mr. Justice Gray delivered the opinion of the court:

These are two appeals from decrees of the district court of the United States for thesouthern district of Florida condemning two fishing vessels and their cargoes asprize of war.

Each vessel was a fishing smack, running in and out of Havana, and regularlyengaged in fishing on the coast of Cuba; sailed under the Spanish flag; was ownedby a Spanish subject of Cuban birth, living in the city of Havana; was commandedby a subject of Spain, also residing in Havana; and her master and crew had nointerest in the vessel, but were entitled to shares, amounting in all to two thirds, ofher catch, the other third belonging to her owner. Her cargo consisted of fresh fish,caught by her crew from the sea, put on board as they were caught, and kept and

sold alive. Until stopped by the blockading squadron she had no knowledge of theexistence of the war or of any blockade. She had no arms or ammunition on board,and made on attempt to run the blockade after she knew of its existence, nor anyresistance at the time of the capture.

The Paquete Habana was a sloop, 43 feet long on the keel, [175 U.S. 677, 679]and of 25 tons burden, and had a crew of three Cubans, including the master, whohad a fishing license from the Spanish government, and no other commission orlicense. She left Havana March 25, 1898; sailed along the coast of Cuba to CapeSan Antonio, at the western end of the island, and there fished for twenty-five days,lying between the reefs off the cape, within the territorial waters of Spain; and thenstarted back for Havana, with a cargo of about 40 quintals of live fish. On April 25,1898, about 2 miles off Mariel, and 11 miles from Havana, she was captured by theUnited States gunboat Castine.

The Lola was a schooner, 51 feet long on the keel, and of 35 tons burden, and had acrew of six Cubans, including the master, and no commission or license. She leftHavana April 11, 1898, and proceeded to Campeachy sound, off Yucatan, fishedthere eight days, and started back for Havana with a cargo of about 10,000 poundsof live fish. On April 26, 1898, near Havana, she was stopped by the United Statessteamship Cincinnati, and was warned not to go into Havana, but was told that shewould be allowed to land at Bahia Honda. She then changed her course, and putforBahia Honda, but on the next morning, when near that port, was captured by theUnited States steamship Dolphin.

Both the fishing vessels were brought by their captors into Key West. A libel for thecondemnation of each vessel and her cargo as prize of war was there filed on April

27, 1898; a claim was interposed by her master on behalf of himself and the othermembers of the crew, and of her owner; evidence was taken, showing the factsabove stated; and on May 30, 1898, a final decree of condemnation and sale was

entered, 'the court not being satisfied that as a matter of law, without anyordinance, treaty, or proclamation, fishing vessels of this class are exempt fromseizure.'

Each vessel was thereupon sold by auction; the Paquete Habana for the sum of$490; and the Lola for the sum of $800. There was no other evidence in the recordof the value of either vessel or of her cargo.

It has been suggested, in behalf of the United States, that [175 U.S. 677, 680]

this court has no jurisdiction to hear and determine these appeals, because thematter in dispute in either case does not exceed the sum or value of $2,000, andthe district judge has not certified that the adjudication involves a question ofgeneral importance.

The suggestion is founded on 695 of the Revised Statutes, which provides that 'anappeal shall be allowed to the Supreme Court from all final decrees of any districtcourt in prize causes, where the matter in dispute, exclusive of costs, exceeds thesum or value of two thousand dollars; and shall be allowed, without reference to thevalue of the matter in dispute, on the certificate of the district judge that theadjudication involves a question of general importance.'

The judiciary acts of the United States, for a century after the organization of thegovernment under the Constitution, did impose pecuniary limits upon appellatejurisdiction.

In actions at law and suits in equity the pecuniary limit of the appellate jurisdictionof this court from the circuit courts of the United States was for a long time fixed at$2000. Acts of September 24, 1789, chap. 20, 22; 1 Stat. at L. 84; March 3, 1803,chap. 40; 2 Stat. at L. 244; Gordon v. Ogden, 3 Pet. 33, 7 L. ed. 592; Rev. Stat.691, 692. In 1875 it was raised to $5,000. Act of February 16, 1875, chap. 77, 3;18 Stat. at L. 316. And in 1889 this was modified by providing that, where thejudgment or decree did not exceed the sum of $5,000, this court should haveappellate jurisdiction upon the question of the jurisdiction of the circuit court, andupon that question only. Act of February 25, 1889, chap. 236, 1; 25 Stat. at L. 693;Parker v. Ormsby,141 U.S. 81 , 35 L. ed. 654, 11 Sup. Ct. Rep. 912.

As to cases of admiralty and maritime jurisdiction, including prize causes, thejudiciary act of 1789, in 9, vested the original jurisdiction in the district courts,without regard to the sum or value in controversy; and in 21 permitted an appealfrom them to the circuit courts where the matter in dispute exceeded the sum orvalue of $300. 1 Stat. at L. 77, 83, chap. 20; The Betsey, 3 Dall. 6, 16, sub nom.Glass v. The Betsey, 1 L. ed. 485, 489; The Amiable Nancy, 3 Wheat. 546, 4 L. ed.456; Stratton v. Jarvis, 8 Pet. 44, 11, 8 L. ed. 846, 849. By the act of March 3,1803, chap. 40, appeals to the circuit court were permitted from all final decrees ofa district court where [175 U.S. 677, 681] the matter in dispute exceeded the sumor value of $50; and from the circuit courts to this court in all cases 'of admiraltyand maritime jurisdiction, and of prize or no prize' in which the matter in disputeexceeded the sum or value of $2,000. 2 Stat. at L. 244; Jenks v. Lewis, 3 Mason,503, Fed. Cas. No. 7,279; Stratton v. Jarvis, above cited; The Admiral, 3 Wall. 603,612, sub nom. The Admiral v. United States, 18 L. ed. 58, 59. The acts of March 3,

1863, chap. 86, 7, and June 30, 1864, chap. 174, 13, provided that appeals fromthe district courts in prize causes should lie directly to this court, where the amount
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in controversy exceeded $2,000, or 'on the certificate of the district judge that theadjudication involves a question of difficulty and general importance.' 12 Stat. at L.760; 13 Stat. at L. 310. The provision of the act of 1803, omitting the words 'and ofprize or no prize,' was re-enacted in 692 of the Revised Statutes; and the provisionof the act of 1864, concerning prize causes, was substantially re-enacted in 695 ofthe Revised Statutes, already quoted.

But all this has been changed by the act of March 3, 1891, chap. 517, establishingthe circuit courts of appeals, and creating a new and complete scheme of appellatejurisdiction, depending upon the nature of the different cases, rater than upon thepecuniary amount involved. 26 Stat. at L. 826.

By that act, as this court has declared, the entire appellate jurisdiction from thecircuit and district courts of the United States was distributed, 'according to thescheme of the act,' between this court and the circuit courts of appeals therebyestablished, 'by designating the classes of cases' of which each of these courts wasto have final jurisdiction. McLish v. Roff,141 U.S. 661, 666 , 35 S. L. ed. 893, 894,12 Sup. Ct. Rep. 118; American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148U.S. 372, 382 , 37 S. L. ed. 486, 490, 13 Sup. Ct. Rep. 758; Carey v. Houston & T.C. R. Co.150 U.S. 170, 179 , 37 S. L. ed. 1041, 1043, 14 Sup. Ct. Rep. 63.

The intention of Congress, by the act of 1891, to make the nature of the case, andnot the amount in dispute, the test of the appellate jurisdiction of this court from

the district and circuit courts, clearly appears upon examination of the leadingprovisions of the act.

Section 4 provides that no appeal, whether by writ of error or otherwise, shallhereafter be taken from a district court [175 U.S. 677, 682] to a circuit court; butthat all appeals, by writ of error or otherwise, from the district courts, 'shall only besubject to review' in this court or in the circuit court of appeal 'as is hereinafterprovided,' and 'the review by appeal, by writ of error, or otherwise' from the circuitcourts, 'shall be had only' in this court or in the circuit court of appeals, 'accordingto the provisions of this act regulating the same.'

Section 5 provides that 'appeals or writs of error may be taken from the districtcourts, or from the existing circuit courts, direct to the Supreme Court, in thefollowing cases:'

First. 'In any case in which the jurisdiction of the court is in issue; in such cases thequestion of jurisdiction alone shall be certified to the Supreme Court from the courtbelow for decision.' This clause includes 'any case,' without regard to amount, inwhich the jurisdiction of the court below is in issue; and differs in this respect fromthe act of 1889, above cited.

Second. 'From the final sentences and decrees in prize causes.' This clause includesthe whole class of 'the final sentences and decrees in prize causes,' and omits allprovisions of former acts regarding amount in controversy, or certificate of a districtjudge.

Third. 'In cases of conviction of a capital or otherwise infamous crime.' This clauselooks to the nature of the crime, and not to the extent of the punishment actuallyimposed. A crime which might have been punished by imprisonment in a

penitentiary is an infamous crime, even if the sentence actually pronounced is of asmall fine only. Ex parte Wilson,114 U.S. 417, 426 , 29 S. L. ed. 89, 92, 5 Sup. Ct.Rep. 935. Consequently, such a sentence for such a crime was subject to theappellate jurisdiction of this court, under this clause, until this jurisdiction, so far asregards infamous crimes, was transferred to the circuit court of appeals by the actof January 20, 1897, chap. 68. 29 Stat. at L. 492.

Fourth. 'In any case that involves the construction or application of the Constitutionof the United States.'

Fifth. 'In any case in which the constitutionality of any law of the United States, orthe validity or construction of any treaty made under its authority, is drawn inquestion.' [175 U.S. 677, 683] Sixth. 'In any case in which the Constitution or lawof a state is claimed to be in contravention of the Constitution of the United States.'

Each of these last three clauses, again, includes 'any case' of the class mentioned.They all relate to what are commonly called Federal questions, and cannotreasonably be construed to have intended that the appellate jurisdiction of thiscourt over such questions should be restricted by any pecuniary limit,-especially intheir connection with the succeeding sentence of the same section: 'Nothing in thisact shall affect the jurisdiction of the Supreme Court in cases appealed from thehighest court of a state, nor the construction of the statute providing for review ofsuch cases.' Writs of error from this court to review the judgments of the highest

court of a state upon such questions have never been subject to any pecuniarylimit. Act of September 24, 1789, chap. 20, 25; 1 Stat. at L. 85; Buel v. Van Ness,8 Wheat. 312, 5 L. ed. 624; Act of February 5, 1867, chap. 28, 2; 14 Stat. at L.386; Rev. Stat. 709.

By 6 of the act of 1891 this court is relieved of much of the appellate jurisdictionthat it had before; the appellate jurisdiction from the district and circuit courts 'in allcases other than those provided for in the preceding section of this act, unlessotherwise provided by law,' is vested in the circuit court of appeals; and itsdecisions in admiralty cases, as well as in cases arising under the cirminal laws, andin certain other classes of cases, are made final, except that that court may certifyto this court questions of law, and that this court may order up the whole case bywrit of certiorari. It is settled that the words 'unless otherwise provided by law,' inthis section, refer only to provisions of the same act, or of contemporaneous or

subsequent acts, and do not include provisions of earlier statutes. Lau Ow Bew v.United States, 144 U.S. 47, 57 , 36 S. L. ed. 340, 343, 12 Sup. Ct. Rep. 517;Hubbard v. Soby, 146 U.S. 56 , 36 L. ed. 886, 13 Sup. Ct. Rep. 13; AmericanConstr. Co. v. Jacksonville, T. & K. W. R. Co.148 U.S. 372, 383 , 37 S. L. ed. 486,491, 13 Sup. Ct. Rep. 758.

The act of 1891 nowhere imposes a pecuniary limit upon the appellate jurisdiction,either of this court or of the circuit court of appeals, from a district or circuit court ofthe United States. The only pecuniary limit imposed is one of [175 U.S. 677, 684]$1,000 upon the appeal to this court of a case which has been once decided onappeal in the circuit court of appeals, and in which the judgment of that court is notmade final by 6 of the act.

Section 14 of the act of 1891, after specifically repealing 691 of the RevisedStatutes and 3 of the act of February 16, 1875, further provides that 'all acts and
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parts of acts relating to appeals or writs of error, inconsistent with the provisions forreview by appeals or writs of error in the preceding 5 and 6 of this act, are herebyrepealed.' 26 Stat. at L. 829, 830. The object of the specific repeal, as this court hasdeclared, was to get rid of the pecuniary limit in the acts referred to. McLish v. Roff,141 U.S. 661, 667 , 35 S. L. ed. 893, 895, 12 Sup. Ct. Rep. 118. And, althoughneither 692 nor 695, of the Revised Statutes is repealed by name, yet, taking intoconsideration the general repealing clause, together with the affirmative provisionsof the act, the case comes within the reason of the decision in an analogous case, inwhich this court said: 'The provisions relating to the subject-matter underconsideration are, however, so comprehensive, as well as so variant from those of

former acts, that we think the intention to substitute the one for the other isnecessarily to be inferred, and must prevail.' Fisk v. Henarie, 142 U.S. 459, 468 ,35 S. L. ed. 1079, 1083, 12 Sup. Ct. Rep. 207.

The decision in this court in the recent case of United States v. Rider,163 U.S. 132, 41 L. ed. 101, 16 Sup. Ct. Rep. 983, affords an important, if not controlling,precedent. From the beginning of this century until the passage of the act of 1891,both in civil and in criminal cases, questions of law upon which two judges of thecircuit court were divided in opinion might be certified by them to this court fordecision. Act of April 29, 1802, chap. 31, 6; 2 Stat. at L. 159; June 1, 1872, chap.255, 1; 17 Stat. at L. 196; Rev. Stat. 650-652, 693, 697; New England M. Ins. Co.v. Dunham, 11 Wall. 1, 21, 20 L. ed. 90, 96; United States v. Sanges, 144 U.S.310, 320 , 36 S. L. ed. 445, 449, 12 Sup. Ct. Rep. 609. But in United States v.Rider it was adjudged by this court that the act of 1891 had superseded and

repealed the earlier acts authorizing questions of law to be certified from the circuitcourt to this court; and the grounds of that adjudication sufficiently appear by [175U.S. 677, 685] the statement of the effect of the act of 1891 in two passages ofthat opinion: 'Appellate jurisdiction was given in all criminal cases by writ of erroreither from this court or from the circuit courts of appeals, and in all civil cases byappeal or error, without regard to the amount in controversy, except as to appealsor writs of error to or from the circuit courts of appeals in cases not made final asspecified in 6.' 'It is true that repeals by implication are not favored, but we cannotescape the conclusion that, tested by its scope, its obvious purpose, and its terms,the act of March 3, 1891, covers the whole subject-matter under consideration, andfurnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ oferror, or certificate.'163 U.S. 138 -140, 41 L. ed. 104, 16 Sup. Ct. Rep. 986.

That judgment was thus rested upon two successive propositions: First, that the act

of 1891 gives appellate jurisdiction, either to this court or to the circuit court ofappeals, in all criminal cases, and in all civil cases 'without regard to the amount incontroversy;' second, that the act, by its terms, its scope, and its obvious purpose,'furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ oferror, or certificate.'

As was long ago said by Chief Justice Marshall, 'the spirit as well as the letter of astatute must be respected, and where the whole context of the law demonstrates aparticular intent in the legislature to effect a certain object, some degree ofimplication may be called in to aid that intent.' Durousseau v. United States, 6Cranch, 307, 314, 3 L. ed. 232, 234. And it is a well-settled rule in the constructionof statutes, often affirmed and applied by this court, that, 'even where two acts arenot in express terms repugnant, yet if the latter act covers the whole subject of thefirst, and embraces new provisions, plainly showing that it was intended as asubstitute for the first act, it will operate as a repeal of that act.' United States v.Tynen, 11 Wall. 88, 92, 20 L. ed. 153, 154; King v. Cornell, 106 U.S. 395, 396 , 27

S. L. ed. 60, 1 Sup. Ct. Rep. 312; Tracy v. Tuffly, 134 U.S. 206, 223 , 33 S. L. ed.879, 884, 10 Sup. Ct. Rep. 527; Fisk v. Henarie,142 U.S. 459, 468 , 35 S. L. ed.1079, 1083, 12 Sup. Ct. Rep. 207; District of Columbia v. Hutton,143 U.S. 18, 27 ,36 S. L. ed. 60, 62, 12 Sup. Ct. Rep. 369; United States v. Healey,160 U.S. 136,147 , 40 S. L. ed. 369, 373, 16 Sup. Ct. Rep. 247.

We are of opinion that the act of 1891, upon its face, read [175 U.S. 677, 686] inthe light of settled rules of statutory construction and of the decisions of this court,clearly manifests the intention of Congress to cover the whole subject of theappellate jurisdiction from the district and circuit courts of the United States, so faras regards in what cases, as well as to what courts, appeals may be taken, and tosupersede and repeal, to this extent, all the provisions of earlier acts of Congress,including those that imposed pecuniary limits upon such jurisdiction, and, as part ofthe new scheme, to confer upon this court jurisdiction of appeals from all finalsentences and decrees in prize causes, without regard to the amount in dispute, andwithout any certificate of the district judge as to the importance of the particularcase.

We are then brought to the consideration of the question whether, upon the factsappearing in these records, the fishing smacks were subject to capture by thearmed vessels of the United States during the recent war with Spain.

By an ancient usage among civilized nations, beginning centuries ago, and gradually

ripening into a rule of international law, coast fishing vessels, pursuing theirvocation of catching and bringing in fresh fish, have been recognized as exempt,with their cargoes and crews, from capture as prize of war.

This doctrine, however, has been earnestly contested at the bar; and no completecollection of the instances illustrating it is to be found, so far as we are aware, in asingle published work although many are referred to and discussed by the writerson international law, notable in 2 Ortolan, Regles Internationales et Diplomatie de laMer (4th ed.) lib. 3, chap. 2, pp. 51-56; in 4 Calvo, Droit International (5th ed.)2367-2373; in De Boeck, Propriete Privee Ennemie sous Pavillon Ennemi, 191-196;and in Hall, International Law (4th ed.) 148. It is therefore worth the while to tracethe history of the rule, from the earliest accessible sources, through the increasingrecognition of it, with occasional setbacks, to what we may now justly consider asits final establishment in our own country and generally throughout the civilized

world.

The earliest acts of any government on the subject, men- [175 U.S. 677, 687]tioned in the books, either emanated from, or were approved by, a King of England.

In 1403 and 1406 Henry IV. issued orders to his admirals and other officers,entitled 'Concerning Safety for Fishermen-De Securitate pro Piscatoribus.' By anorder of October 26, 1403, reciting that it was made pursuant to a treaty betweenhimself and the King of France; and for the greater safety of the fishermen of eithercountry, and so that they could be, and carry on their industry, the more safely onthe sea, and deal with each other in peace; and that the French King had consentedthat English fishermen should be treated likewise,-it was ordained that Frenchfishermen might, during the then pending season for the herring fishery, safely fish

for herrings and all other fish, from the harbor of Gravelines and the island ofThanet to the mouth of the Seine and the harbor of Hautoune. And by an order of
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October 5, 1406, he took into his safe conduct and under his special protection,guardianship, and defense, all and singular the fishermen of France, Flanders, andBrittany, with their fishing vessels and boats, everywhere on the sea, through andwithin his dominions, jurisdictions, and territories, in regard to their fishery, whilesailing, coming, and going, and, at their pleasure, freely and lawfully fishing,delaying, or proceeding, and returning homeward with their catch of fish, withoutany molestation or hindrance whatever; and also their f ish, nets, and other propertyand goods soever; and it was therefore ordered that such fishermen should not beinterfered with, provided they should comport themselves well and properly, andshould not, by color of these presents, do or attempt, or presume to do or attempt,

anything that could prejudice the King, or his Kingdom of England, or his subjects. 8Rymer's Foedera, 336, 451.

The treaty made October 2, 1521, between the Emperor Charles V. and Francis I. ofFrance, through their ambassadors, recited that a great and fierce war had arisenbetween them, because of which there had been, both by land and by sea, frequentdepredations and incursions on either side, to the grave detriment and intolerableinjury of the innocent [175 U.S. 677, 688] subjects of each; and that a suitabletime for the herring fishery was at hand, and, by reason of the sea being beset bythe enemy, the fishermen did not dare to go out, whereby the subject of theirindustry, bestowed by heaven to allay the hunger of the poor, whould wholly fail forthe year, unless it were otherwise provided,-Quo fit, ut piscaturoe commoditas, adpauperum levandam famen a coelesti numine concessa, cessare hoc anno cmninodebeat, nisi aliter provideatur. And it was therefore agreed that the subjects of each

sovereign, fishing in the sea, or exercising the calling of fishermen, could and might,until the end of the next January, without incurring any attack, depredation,molestation, trouble, or hindrance soever, safely and freely, everywhere in the sea,take herrings and every other kind of fish, the existing war by land and seanotwithstanding; and, further, that during the time aforesaid no subject of eithersovereign should commit, or attempt or presume to commit, any depredation, force,violence, molestation, or vexation to or upon such fishermen or their vessels,supplies, equipments, nets, and fish, or other goods soever truly appeartaining tofishing. The treaty was made at Calais, then an English possession. It recites thatthe ambassadors of the two sovereigns met there at the earnest request of HenryVIII. and with his countenance, and in the presence of Cardinal Wolsey, hischancellor and representative. And towards the end of the treaty it is agreed thatthe said King and his said representative, 'by whose means the treaty standsconcluded, shall be conservators of the agreements therein, as if thereto by both

parties elected and chosen.' 4 Dumont, Corps Diplomatique, pt. 1, pp. 352, 353.

The herring fishery was permitted, in time of war, by French and Dutch edicts in1536. Bynkershoek, Quaestiones Juris Publicae, lib. 1, chap. 3; 1 Emerigon desAssurances, chap. 4, 9; chap. 12, 19, 8.

France, from remote times, set the example of alleviating the evils of war in favor ofall coast fishermen. In the compilation entitled 'Us et Coutumes de la Mer,'published by Cleirac in 1661, and in the third part thereof, containing 'Maritime orAdmiralty Jurisdiction,-la Jurisdiction de la [175 U.S. 677, 689] Marine ou d'Admiraute-as well in time of peace, as in time of war,' article 80 is as follows: 'Theadmiral may in time of war accord fishing truces-tresves pescheresses-to the enemyand to his subjects; provided that the enemy will likewise accord them toFrenchmen.' Cleirac, 544. Under this article, reference is made to articles 49 and 79

respectively of the French ordinances concerning the admiralty in 1543 and 1584, ofwhich it is but a reproduction. 4 Pardessus, Collection de Lois Maritimes, 319; 2

Ortolan, 51. And Cleirac adds, in a note, this quotation from Froissart's Chronicles:'Fishermen on the sea, whatever war there were in France and England, never didharm to one another; so they are friends, and help one another at need,-Pescheurssur mer, quelque guerre qui soit en France et Angleterre, jamais ne se firent mall'un a l'autre; aincois sont amis, et s'aydent l'un a l'autre au besoin.'

The same custom would seem to have prevailed in France until towards the end ofthe seventeenth century. For example, in 1675, Louis XIV. and the States Generalof Holland by mutual agreement granted to Dutch and French fishermen the liberty,undisturbed by their vessels of war, of fishing along the coats of France, Holland,and England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1, vol. 2, p. 278.But by the ordinances of 1681 and 1692 the practice was discontinued, because,Valin says, of the faithless conduct of the enemies of France, who, abusing the goodfaith with which she had always observed the treaties, habitually carried off herfishermen, while their own fished in safety. 2 Valin sur l'Ordonnance de la Marine(1776) 689, 690; 2 Ortolan, 52; De Boeck, 192.

The doctrine which exempts coast fishermen, with their vessels and cargoes, fromcapture as prize of war, has been familiar to the United States from the time of theWar of Independence.

On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his admiral,informing him that the wish he had always had of alleviating, as far as he could, the

hardships of war, had directed his attention to that class of his subjects [175 U.S.677, 690] which devoted itself to the trade of fishing, and had no other means oflivelihood; that he had thought that the example which he should give to hisenemies, and which could have no other source than the sentiments of humanitywhich inspired him, would determine them to allow to fishermen the same facilitieswhich he should consent to grant; and that he had therefore given orders to thecommanders of all his ships not to disturb English fishermen, nor to arrest theirvessels laden with fresh fish, even if not caught by those vessels; provided they hadno offensive arms, and were not proved to have made any signals creating asuspicion of intelligence with the enemy; and the admiral was directed tocommunicate the King's intentions to all officers under his control. By a royal orderin council of November 6, 1780, the former orders were confirmed; and the captureand ransom, by a French cruiser, of The John and Sarah, an English vessel, comingfrom Holland, laden with fresh fish, were pronounced to be illegal. 2 Code des Prises

(ed. 1784) 721, 901, 903.

Among the standing orders made by Sir James Marriott, Judge of the English HighCourt of Admiralty, was one of April 11, 1780, by which it was 'ordered that allcauses of prize of fishing boats or vessels taken from the enemy may beconsolidated in one monition, and one sentence or interlocutory, if under 50 tonsburthen, and not more than 6 in number.' Marriott's Formulary, 4. But by thestatements of his successor, and of both French and English writers, it apears thatEngland, as well as France, during the American Revolutionary War, abstained frominterfering with the coast fisheries. The Young Jacob and Johanna, 1 C. Rob. 20; 2Ortolan, 53; Hall, 148.

In the treaty of 1785 between the United States and Prussia, article 23 (which wasproposed by the American Commissioners, John Adams, Benjamin Franklin, and

Thomas Jefferson, and is said to have been drawn up by Franklin), provided that, ifwar should arise between the contracting parties, 'all women and children, scholars


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of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen,[175 U.S. 677, 691] unarmed and inhabiting unfortified towns, villages, or places,and in general all others whose occupations are for the common subsistence andbenefit of mankind, shall be allowed to continue their respective employments, andshall not be molested in their persons, nor shall their houses or goods be burnt orotherwise destroyed, nor their fields wasted by the armed force of the enemy, intowhose power, by the events of war, they may happen to fall; but if anything isnecessary to be taken from them for the use of such armed force, the same shall bepaid for at a reasonable price.' 8 Stat. at L. 96; 1 Kent, Com. 91, note; Wheaton,History of the Law of Nations, 306, 308. Here was the clearest exemption from

hostile molestation or seizure of the persons, occupations, houses, and goods ofunarmed fishermen inhabiting unfortified places. The article was repeated in thelater treaties between the United States and Prussia of 1799 and 1828. 8 Stat. at L.174, 384. And Dana, in a note to his edition of Wheaton's International Laws, says:'In many treaties and decrees, fishermen catching fish as an article of food areadded to the class of persons whose ocupation is not to be disturbed in war.'Wheaton, International Law (8th ed.) 345, note 168.

Since the United States became a nation, the only serious interruptions, so far aswe are informed, of the general recognition of the exemption of coast fishingvessels from hostile capture, arose out of the mutual suspicions and recriminationsof England and France during the wars of the French Revolution.

In the first years of those wars, England having authorized the capture of Frenchfishermen, a decree of the French National Convention of October 2, 1793, directedthe executive power 'to protest against this conduct, theretofore without example;to reclaim the fishing boats seized; and, in case of refusal, to resort to reprisals.'But in July, 1796, the Committee of Public Safety ordered the release of Englishfishermen seized under the former decree, 'not considering them as prisoners ofwar.' La Nostra Segnora de la Piedad (1801) cited below; 2 De Cussy, DroitMaritime, 164, 165; 1 Masse, Droit Commercial (2d ed.) 266, 267. [175 U.S. 677,692] On January 24, 1798, the English government by express order instructedthe commanders of its ships to seize French and Dutch fishermen with their boats. 6Martens, Recueil des Traites (2d ed.) 505; 6 Schoell, Histoire des Traites, 119; 2Ortolan, 53. After the promulgation of that order, Lord Stowell (then Sir WilliamScott) in the High Court of Admiralty of England condemned small Dutch fishingvessels as prize of war. In one case the capture was in April, 1798, and the decreewas made November 13, 1798. The Young Jacob and Johanna, 1 C. Rob. 20. In

another case the decree was made August 23, 1799. The Noydt Gedacht, 2 C. Rob.137, note.

For the year 1800 the orders of the English and French governments and thecorrespondence between them may be found in books already referred to. 6Martens, 503-512; 6 Schoell, 118-120; 2 Ortolan, 53, 54. The doings for that yearmay be summed up as follows: On March 27, 1800, the French government,unwilling to resort to reprisals, re-enacted the orders given by Louis XVI. in 1780,above mentioned, prohibiting any seizure by the French ships of English fishermen,unless armed or proved to have made signals to the enemy. On May 30, 1800, theEnglish government, having received notice of that action of the Frenchgovernment, revoked its order of January 24, 1798. But soon afterward the Englishgovernment complained that French fishing boats had been made into fireboats atFlushing, as well as that the French government had impressed and had sent to

Brest, to serve in its flotilla, French fishermen and their boats, even those whom theEnglish had released on condition of their not serving; and on January 21, 1801,

summarily revoked its last order, and again put in force its order of January 24,1798. On February 16, 1801, Napoleon Bonaparte, then First Consul, directed theFrench commissioner at London to return at once to France, first declaring to theEnglish government that its conduct, 'contrary to all the usages of civilized nations,and to the common law which governs them, even in time of war, gave to theexisting war a character of rage and bitterness which destroyed even the relationsusual in a loyal war,' [175 U.S. 677, 693] AND 'TENDED ONLY TO EXASPERATETHE TWO nations, and to put off the term of peace;' and that the Frenchgovernment, having always made it 'a maxim to alleviate as much as possible theevils of war, could not think, on its part, of rendering wretched fishermen victims of

a prolongation of hostilities, and would abstain from all reprisals.'

On March 16, 1801, the Addington Ministry, having come into power in England,revoked the orders of its predecessors against the French fishermen; maintaining,however, that 'the freedom of fishing was nowise founded upon an agreement, butupon a simple concession;' that 'this concession would be always subordinate to theconvenience of the moment,' and that 'it was never extended to the great fishery,or to commerce in oysters or in fish.' And the freedom of the coast fisheries wasagain allowed on both sides. 6 Martens, 514; 6 Schoell, 121; 2 Ortolan, 54;Manning, Law of Nations (Amos's ed.) 206.

Lord Stowell's judgment in The Young Jacob and Johanna, 1 C. Rob. 20, abovecited, was much relied on by the counsel for the United States, and deserves carefulconsideration.

The vessel there condemned is described in the report as 'a small Dutch fishingvessel taken April, 1798, on her return from the Dogger bank to Holland;' and LordStowell, in delivering judgment, said: 'In former wars it has not been usual to makecaptures of these small fishing vessels; but this rule was a rule of comity only, andnot of legal decision; it has prevailed from views of mutual accommodation betweenneighboring countries, and from tenderness to a poor and industrious order ofpeople. In the present war there has, I presume, been sufficient reason forchanging this mode of treatment; and as they are brought before me for myjudgment they must be referred to the general principles of this court; they fallunder the character and description of the last class of cases; that is, of shipsconstantly and exclusively employed in the enemy's trade.' And he added: 'It is afurther satisfaction to me, in giving this judgment, to observe that the facts also

bear strong marks of a false and fraudulent transaction.' [175 U.S. 677, 694] Boththe capture and the condemnation were within a year after the order of the Englishgovernment of January 24, 1798, instructing the commanders of its ships to seizeFrench and Dutch fishing vessels, and before any revocation of that order. LordStowell's judgment shows that his decision was based upon the order of 1798, aswell as upon strong evidence of fraud. Nothing more was adjudged in the case.

But some expressions in his opinion have been given so much weight by Englishwriters that it may be well to examine them particularly. The opinion begins byadmitting the known custom in former wars not to capture such vessels; adding,however, 'but this was a rule of comity only, and not of legal decision.' Assumingthe phrase 'legal decision' to have been there used, in the sense in which courts areaccustomed to use it, as equivalent to 'judicial decision,' it is true that, so far asappears, there had been no such decision on the point in England. The word 'comity'

was apparently used by Lord Stowell as synonymous with courtesy or goodwill. Butthe period of a hundred years which has since elapsed is amply sufficient to have


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enabled what originally may have rested in custom or comity, courtesy orconcession, to grow, by the general assent of civilized nations, into a settled rule ofinternational law. As well said by Sir James Mackintosh: 'In the present century aslow and silent, but very substantial, mitigation has taken place in the practice ofwar; and in proportion as that mitigated practice has received the sanction of time itis raised from the rank of mere usage, and becomes part of the law of nations.'Discourse on the Law of Nations, 38; 1 Miscellaneous Works, 360.

The French prize tribunals, both before and after Lord Stowell's decision, took awholly different view of the general question. In 1780, as already mentioned, an

order in council of Louis XVI. had declared illegal the capture by a French cruiser ofThe John and Sarah, an English vessel coming from Holland, laden with fresh fish.And on May 17, 1801, where a Portuguese fishing vessel, with her cargo of fish,having no more crew than was needed for her management and for serving thenets, on a trip of several days, had been capt- [175 U.S. 677, 695] ured in April,1801, by a French cruiser, 3 leagues off the coast of Portugal, the Council of Prizesheld that the capture was contrary to 'the principles of humanity and the maxims ofinternational law,' and decreed that the vessel, with the fish on board, or the netproceeds of any that had been sold, should be restored to her master. La NostraSegnora de la Piedad, 25 Merlin, Jurisprudence, Prise Maritime, 3, arts. 1, 3; S. C. 1Pistoye et Duverdy, Prises Maritimes, 331; 2 De Cussy, Droit Maritime, 166.

The English government, soon afterwards, more than once unqualifiedly prohibitedthe molestation of fishing vessels employed in catching and bringing to market freshfish. On May 23, 1806, it was 'ordered in council that all fishing vessels underPrussian and other colors, and engaged for the purpose of catching fish andconveying them fresh to market, with their crews, cargoes, and stores, shall not bemolested on their fishing voyages and bringing the same to market; and that nofishing vessels of this description shall hereafter be molested. And the RightHonorable the Lords Commissioners of His Majesty's Treasury, the LordsCommissioners of the Admiralty, and the Judge of the High Court of Admiralty, areto give the necessary directions herein as to them may respectively appertain.' 5 C.Rob. 408. Again, in the order in council of May 2, 1810, which directed that 'allvessels which shall have cleared out from any port so far under the control ofFrance or her allies as that British vessels may not freely trade thereat, and whichare employed in the whale fishery, or other fishery of any description, save ashereinafter excepted, and are returning, or destined to return either to the portfrom whence they cleared, or to any other port or place at which the British flag

may not freely trade, shall be captured and condemned together with their storesand cargoes, as prize to the captors,' there were excepted 'vessels employed incatching and conveying fish fresh to market, such vessels not being fitted orprovided for the curing of fish.' Edw. Adm. appx. L.

Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in1815, wrote: 'It has been usual [175 U.S. 677, 696] in maritime wars to exemptfrom capture fishing boats and their cargoes, both from views of mutualaccommodation between neighboring countries, and from tenderness to a poor andindustrious order of people. This custom, so honorable to the humanity of civilizednations, has fallen into disuse; and it is remarkable that both France and Englandmutually reproach each other with that breach of good faith which has finallyabolished it.' Wheaton, Captures, chap. 2, 18.

This statement clearly exhibits Wheaton's opinion that the custom had been ageneral one, as well as that it ought to remain so. His assumption that it had beenabolished by the differences between France and England at the close of the lastcentury was hardly justified by the state of things when he wrote, and has not sincebeen borne out.

During the wars of the French Empire, as both French and English writers agree, thecoast fisheries were left in peace. 2 Ortolan, 54; De Boeck, 193; Hall, 148. DeBoeck quaintly and truly adds, 'and the incidents of 1800 and of 1801 had nomorrow,-n'eurent pas de lendemain.'

In the war with Mexico, in 1846, the United States recognized the exemption ofcoast fishing boats from capture. In proof of this, counsel have referred to recordsof the Navy Department, which this court is clearly authorized to consult upon sucha question. Jones v. United States,137 U.S. 202 , 34 L. ed. 691, 11 Sup. Ct. Rep.80; Underhill v. Hernandez,168 U.S. 250, 253 , 42 S. L. ed. 456, 457, 18 Sup. Ct.Rep. 83.

By those records it appears that Commodore Conner, commanding the HomeSquadron blockading the east coast of Mexico, on May 14, 1846, wrote a letter fromthe ship Cumberland, off Brazos Santiago, near the southern point of Texas, to Mr.Bancroft, the Secretary of the Navy, inclosing a copy of the commodore's'instructions to the commanders of the vessels of the Home Squadron, showing the

principles to be observed in the blockade of the Mexican ports,' one of which wasthat 'Mexican boats engaged in fishing on any part of the coast will be allowed topursue their labors unmolested;' and that on June 10, 1846, those instructions wereapproved by the Navy Department, of which Mr. Bancroft was still the head, andcontinued to be until he was appointed Minister to [175 U.S. 677, 697] England inSeptember following. Although Commodore Conner's instructions and theDepartment's approval thereof do not appear in any contemporary publication of thegovernment, they evidently became generally known at the time, or soon after; forit is stated in several treatises on international law (beginning with Ortolan's secondedition, published in 1853) that the United States in the Mexican war permitted thecoast fishermen of the enemy to continue the free exercise of their industry. 2Ortolan (2d ed.) 49, note; (4th ed.) 55; 4 Calvo (5th ed.) 2372; De Boeck, 194;Hall (4th ed.) 148.

As qualifying the effect of those statements, the counsel for the United States reliedon a proclamation of Commodore Stockton, commanding the Pacific Squadron,dated August 20, 1846, directing officers under his command to proceedimmediately to blockade the ports of Mazatlan and San Blas, on the west coast ofMexico, and saying to them, 'All neutral vessels that you may find there you willallow twenty days to depart; and you will make the blockade absolute against allvessels, except armed vessels of neutral nations. You will capture all vessels underthe Mexican flag that you may be able to take.' Navy Reports of 1846, pp. 673, 674.But there is nothing to show that Commodore Stockton intended, or that thegovernment approved, the capture of coast fishing vessels.

On the contrary, General Halleck, in the preface to his work on International Law, orRules Regulating the Intercourse of States in Peace and War, published in 1861,says that he began that work, during the war between the United States and

Mexico, 'while serving on the staff of the commander of the Pacific Squadron' and'often required to give opinions on questions of international law growing out of the
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operations of the war.' Had the practice of the blockading squadron on the westcoast of Mexico during that war, in regard to fishing vessels, differed from thatapproved by the Navy Department on the east coast, General Halleck could hardlyhave failed to mention it, when stating the prevailing doctrine upon the subject asfollows: [175 U.S. 677, 698] 'Fishing boats have also, as a general rule, beenexempted from the effects of hostilities. As early as 1521, while war was ragingbetween Charles V. and Francis, ambassadors from these two sovereigns met atCalais, then English, and agreed that, whereas the herring fishery was about tocommence, the subjects of both belligerents engaged in this pursuit should be safeand unmolested by the other party, and should have leave to fish as in time of

peace. In the war of 1800, the British and French governments issued formalinstructions exempting the fishing boats of each other's subjects from seizure. Thisorder was subsequently rescinded by the British government, on the alleged groundthat some French fishing boats were equipped as gunboats, and that some Frenchfishermen who had been prisoners in England had violated their parole not to serve,and had gone to join the French fleet at Brest. Such excuses were evidently merepretexts; and after some angry discussions had taken place on the subject theBritish restriction was withdrawn, and the freedom of fishing was again allowed onboth sides. French writers consider this exemption as an established principle of themodern law of war, and it has been so recognized in the French courts, which haverestored such vessels when captured by French cruisers.' Halleck (1st ed.) chap. 20,23.

That edition was the only one sent out under the author's own auspices, except an

abridgment, entitled 'Elements of International Law and the Law of War,' which hepublished in 1866, as he said in the preface, to supply a suitable text-book forinstruction upon the subject, 'not only in our colleges, but also in our two greatnational schools,-the Military and Naval Academies.' In that abridgment thestatement as to fishing boats was condensed as follows: 'Fishing boats have also, asa general rule, been exempted from the ef fects of hostilities. French writers considerthis exemption as an established principle of the modern law of war, and it has beenso recognized in the French courts, which have restored such vessels when capturedby French cruisers.' Halleck's Elements, chap. 20, 21.

In the treaty of peace between the United States and Mex- [175 U.S. 677, 699]ico, in 1848, were inserted the very words of the earlier treaties with Prussia,already quoted, forbidding the hostile molestation or seizure in time of war of thepersons, occupations, houses, or goods of fishermen. 9 Stat. at L. 939, 940.

Wharton's Digest of the International Law of the United States, published byauthority of Congress in 1886 and 1887, embodies General Halleck's fullerstatement, above quoted, and contains nothing else upon the subject. 3 Whart. Int.Law Dig. 345, p. 315; 2 Halleck (Eng. eds. 1873 and 1878) p. 151.

France in the Crimean war in 1854, and in her wars with Italy in 1859 and withGermany in 1870, by general orders, forbade her cruisers to trouble the coastfisheries, or to seize any vessel or boat engaged therein, unless naval or militaryoperations should make it necessary. Calvo, 2372; Hall, 148; 2 Ortolan (4th ed.)449; 10 Revue de Droit Interantional (1878) 399. Revne de Droit International(1878) 399. her alliance with France and Italy, England did not follow the same lineof conduct; and that her cruisers in the Sea of Azof destroyed the fisheries, nets,

fishing implements, provisions, boats, and even the cabins of inhabitants of thecoast. Calvo, 2372. And a Russian writer on prize law remarks that those

depredations, 'having brought ruin on poor fishermen and inoffensive traders, couldnot but leave a painful impression on the minds of the population, without impairingin the least the resources of the Russian government.' Katchenovsky (Pratt's ed.)148. But the contemporaneous reports of the English naval officers put a differentface on the matter, by stating that the destruction in question was part of a militarymeasure, conducted with the co-operation of the French ships, and pursuant toinstructions of the English admiral 'to clear the seaboard of all fish stores, allfisheries and mills, on a scale beyond the wants of the neighboring population, andindeed of all things destined to contribute to the maintenance of the enemy's armyin the Crimea;' and that the property destroyed consisted of large fishing

establishments and storehouses of the Russian government, numbers of heavylaunches, and enormous quantities of nets and gear, salted fish, corn, [175 U.S.677, 700] and other provisions intended for the supply of the Russian army.United Service Journal of 1855, pt. 3, pp. 108-112.

Since the English orders in council of 1806 and 1810, before quoted, in favor offishing vessels employed in catching and bringing to market fresh fish, no instancehas been found in which the exemption from capture of private coast fishing vesselshonestly pursuing their peaceful industry has been denied by England or by anyother nation. And the Empire of Japan ( the last state admitted into the rank ofcivilized nations), by an ordinance promulgated at the beginning of its war withChina in August, 1894, established prize courts, and ordained that 'the followingenemy's vessels are exempt from detention,' including in the exemption 'boatsengaged in coast fisheries,' as well as 'ships engaged exclusively on a voyage of

scientific discovery, philanthrophy, or religious mission.' Takahashi, InternationalLaw, 11, 178.

International law is part of our law, and must be ascertained and administered bythe courts of justice of appropriate jurisdiction as often as questions of rightdepending upon it are duly presented for their determination. For this purpose,where there is no treaty and no controlling executive or legislative act or judicialdecision, resort must be had to the customs and usages of eivilized nations, and, asevidence of these, to the works of jurists and commentators who by years of labor,research, and experience have made themselves peculiarly well acquainted with thesubjects of which they treat. Such works are resorted to by judicial tribunals, not forthe speculations of their authors concerning what the law ought to be, but fortrustworthy evidence of what the law really is. Hilton v. Guyot,159 U.S. 113, 163 ,164 S., 214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.

Wheaton places among the principal sourees international law 'text- writers ofauthority, showing what is the approved usage of nations, or the general opinionrespecting their mutual conduct, with the definitions and modifications introducedby general consent.' As to these he forcibly observes: 'Without wishing toexaggerate the importance of these writers, or to substitute, in any case, theirauthority for the principles of reason, it may be affirmed that they are gen- [175U.S. 677, 701] erally impartial in their judgment. They are witnesses of thesentiments and usages of civilized nations, and the weight of their testimonyincreases every time that their authority is invoked by statesmen, and every yearthat passes without the rules laid down in their works being impugned by theavowal of contrary principles.' Wheaton, International Law ( 8th ed.), 15.

Chancellor Kent says: 'In the absence of higher and more authoritative sanctions,the ordinances of foreign states, the opinions of eminent statesmen, and the
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writings of distinguished jurists, are regarded as of great consideration on questionsnot settled by conventional law. In cases where the principal jurists agree, thepresumption will be very great in favor of the solidity of their maxims; and nocivilized nation that does not arrogantly set all ordinary law and justice at defiancewill venture to disregard the uniform sense of the established writers oninternational law.' 1 Kent, Com. 18.

It will be convenient, in the first place, to refer to some leading French treatises oninternational law, which deal with the question now before us, not as one of the lawof France only, but as one determined by the general consent of civilized nations.

'Enemy ships,' say Pistoye and Duverdy, in their Treatise on MaritimePrizes, published in 1855, 'are good prize. Not all, however; for it resultsfrom the unanimous accord of the maritime powers that an exceptionshould be made in favor of coast fishermen. Such fishermen are respectedby the enemy so long as they devote themselves exclusively to fishing.' 1Pistoye et Duverdy, tit. 6, chap. 1, p. 314.

De Cussy, in his work on the Phases and Leading Cases of the Maritime Law ofNations,-Phases et Causes Celebres du Droit Maritime des Nations,- published in1856, affirms in the clearest language the exemption from capture of fishing boats,saying, in lib. 1, tit. 3, 36, that 'in time of war the freedom of fishing is respected bybelligerents; fishing boats are considered as neutral; in law, as in principle, they are

not subject either to capture or to confiscation;' and that in lib. 2, chap. 20, he willstate 'several facts and several decisions [175 U.S. 677, 702] which prove that theperfect freedom and neutrality of fishing boats are not illusory.' 1 De Cussy, p. 291.And in the chapter so referred to, entitled De la Liberte et de la Neutralite Parfaitede la Peche, besides references to the edicts and decisions in France during theFrench Revolution, is this general statement: 'If one consulted only positiveinternational law,'-le droit des gens positif,-(by which is evidently meantinternational law expressed in treaties, decrees, or other public acts, asdistinguished from what may be implied from custom or usage) 'fishing boats wouldbe subject, like all other trading vessels, to the law of prize; a sort of tacitagreement among all European nations frees them from it, and several officialdeclarations have confirmed this privilege in favor of 'a class of men whose hard andill-rewarded labor, commonly performed by feeble and aged hands, is so foreign tothe operations of war.' 2 De Cussy, 164, 165.

Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer,published in 1864, after stating the general rule that the vessels and cargoes ofsubjects of the enemy are lawful prize, says: 'Nevertheless, custom admits anexception in favor of boats engaged in the coast fishery; these boats, as well astheir crews, are free from capture and exempt from all hostilities. The coast-fishingindustry is, in truth, wholly pacific, and of much less importance in regard to thenational wealth that it may produce than maritime commerce or the great fisheries.Peaceful and wholly inoffensive, those who carry it on, among whom women areoften seen, may be called the harvesters of the territorial seas, since they confinethemselves to gathering in the products thereof; they are for the most part poorfamilies who seek in this calling hardly more than the means of gaining theirlivelihood.' 2 Ortolan, 51. Again, after observing that there are very few solemnpublic treaties which make mention of the immunity of fishing boats in time of war,

he says: 'From another point of view the custom which sanctions this immunity isnot so general that it can be considered as making an absolute international rule;

but it has been so often put in practice, and, besides, it accords so well with the rulein use in wars on [175 U.S. 677, 703] land, in regard to peasants andhusbandmen, to whom coast fishermen may be likened, that it will doubtlesscontinue to be followed in maritime wars to come.' 2 Ortolan, 55.

No international jurist of the present day has a wider or more deserved reputationthan Calvo, who, though writing in French, is a citizen of the Argentine Republic,employed in its diplomatic service abroad. In the fifth edition of his great work oninternational law, published in 1896, he observes, in 2366, that the internationalauthority of decisions in particular cases by the prize courts of France, of England,

and of the United States is lessened by the fact that the principles on which they arebased are largely derived from the internal legislation of each country; and yet thepeculiar character of maritime wars, with other considerations, gives to prizejurisprudence a force and importance reaching beyond the limits of the country inwhich it has prevailed. He therefore proposes here to group together a number ofparticular cases proper to serve as precedents for the solution of grave questions ofmaritime law in regard to the capture of private property as prize of war.Immediately, in 2367, he goes on to say: 'Notwithstanding the hardships to whichmaritime wars subject private property, notwithstanding the extent of therecognized rights of belligerents, there are generally exempted, from seizure andcapture, fishing vessels.' In the next section he adds: 'This exception is perfectlyjusticiable,-Cette exception est parfaitement justiciable,'-that is to say, belonging tojudicial jurisdiction or cognizance. Littre, Dist. voc. Justiciable; Hans v. Louisiana,134 U.S. 1, 15 , 33 S. L. ed. 842, 847, 10 Sup. Ct. Rep. 504. Calvo then quotes

Ortolan's description, above cited, of the nature of the coast-fishing industry; andproceeds to refer, in detail, to some of the French precedents, to the acts of theFrench and English governments in the times of Louis XVI. and of the FrenchRevolution, to the position of the United States in the war with Mexico, and ofFrance in later wars, and to the action of British cruisers in the Crimean war. And heconcludes his discussion of the subject, in 2373, by affirming the exemption of thecoast fishery, and pointing out the distinction in this regard between the coastfishery and [175 U.S. 677, 704] what he calls the great fishery, for cod, whales, orseals, as follows: 'The privilege of exemption from capture, which is generallyacquired by fishing vessels plying their industry near the coasts, is not extended inany country to ships employed on the high sea in what is called the great fishery,such as that for the cod, for the whale or the sperm whale, or for the seal or seacalf. These ships are, in effect, considered as devoted to operations which are atonce commercial and industrial,-Ces navires sont en effect consideres comme

adonnes a des operations a la fois commerciales et industrielles.' The distinction isgenerally recognized. 2 Ortolan, 54; De Boeck, 196; Hall, 148. See also The Susa, 2C. Rob. 251; The Johan, Edw. Adm. 275, and appx. L.

The modern German books on international law, cited by the counsel for theappellants, treat the custom by which the vessels and implements of coastfishermen are exempt from seizure and capture as well established by the practiceof nations. Heffter, 137; 2 Kalterborn, 237, p. 480; Bluntschli, 667; Perels, 37, p.217.

De Boeck, in his work on Enemy Private Property under Enemy's Flag,- De laPropriete Privee Ennemie sous Pavillon Ennemi,-published in 1882, and the onlycontinental treatise cited by the counsel for the United States, says in 191: 'A usagevery ancient, if not universal, withdraws from the right of capture enemy vessels

engaged in the coast fishery. The reason of this exception is evident; it would havebeen too hard to snatch from poor fishermen the means of earning their bread. . . .
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The exemption includes the boats, the fishing implements, and the cargo of fish.'Again, in 195: 'It is to be observed that very few treatises sanction in due form thisimmunity of the coast fishery. . . . There is, then, only a custom. But what is itscharacter? Is it so fixed and general that it can be raised to the rank of a positiveand formal rule of international law?' After discussing the statements of otherwriters, he approves the opinion of Ortolan (as expressed in the last sentence abovequoted from his work), and says that, at bottom, it differs by a shade only from thatformulated by Calvo and by some of the German jurists, and that 'it is more exact,[175 U.S. 677, 705] without ignoring the imperative character of the humane rulein question,- elle est plus exacte, sans meconnaitre le caractere imperatif de la regle

d'humanite dont il s'agit.' And in 196 he defines the limits of the rule as follows:'But the immunity of the coast fishery must be limited by the reasons which justifyit. The reasons of humanity and of harmlessness-les raisons d'humanite etd'innocuite-which militate in its favor do not exist in the great fishery, such as thecod fishery; ships engaged in that fishery devote themselves to truly commercialoperations, which employ a large number of seamen. And these same reasonscease to be applicable to fishing vessels employed for a warlike purpose, to thosewhich conceal arms, or which exchange signals of intelligence with ships of war; butonly those taken in the fact can be rigorously treated; to allow seizure by way ofpreventive would open the door to every abuse, and would be equivalent to asuppression of the immunity.'

Two recent English text-writers cited at the bar (influenced by what Lord Stowellsaid a cantury since) hesitate to recognize that the exemption of coast fishing

vessels from capture has now become a settled rule of international law. Yet theyboth admit that there is little real difference in the views, or in the practice, ofEngland and of other maritime nations; and that no civilized nation at the presentday would molest coast fishing vessels so long as they were peaceably pursuingtheir calling and there was no danger that they or their crews might be of militaryuse to the enemy. Hall, in 148 of the fourth edition of his Treatise on InternationalLaw, after briefly sketching the history of the positions occupied by France andEngland at different periods, and by the United States in the Mexican war, goes onto say: 'In the foregoing facts there is nothing to show that much real difference hasexisted in the practice of the maritime countries. England does not seem to havebeen unwilling to spare fishing vessels so long as they are harmless, and it does notappear that any state has accorded them immunity under circumstances ofinconvenience to itself. It is likely that all nations would now refrain from molestingthem as a general rule, and would cap- [175 U.S. 677, 706] ture them so soon as

any danger arose that they or their crews might be of military use to the enemy;and it is also likely that it is impossible to grant them a more distinct exemption.'So, T. J. Lawrence, in 206 of his Principles of International Law, says: 'Thedifference between the English and the French view is more apparent than real; forno civilized belligerent would now capture the boats of fishermen plying theiravocation peaceably in the territorial waters of their own state; and no jurist wouldseriously argue that their immunity must be respected if they were used for warlikepurposes, as were the smacks belonging to the northern ports of France when GreatBritain gave the order to capture them in 1800.'

But there are writers of various maritime countries, not yet cited, too important tobe passed by without notice.

Jan Helenus Ferguson, Netherlands Minister to China, and previously in the naval

and in the colonial service of his country, in his Manual of International Law for theUse of Navies, Colonies, and Consulates, published in 1882, writes: 'An exception to

the usage of capturing enemy's private vessels at sea is the coast fishery. . . . Thisprinciple of immunity from capture of fishing boats is generally adopted by allmaritime powers, and in actual warfare they are universally spared so long as theyremain harmless.' 2 Ferguson, 212.

Ferdinand Attlmayr, captain in the Austrian Navy, in his Manual for Naval Officers,published at Vienna in 1872 under the auspices of Admiral Tegetthoff, says:'Regarding the capture of enemy property, an exception must be mentioned, whichis a universal custom. Fishing vessels which belong to the adjacent coast, andwhose business yields only a necessary livelihood, are, from considerations of

humanity, universally excluded from capture.' 1 Attlmayr, 61.

Ignacio de Megrin, First Official of the Spanish Board of Admiralty, in his ElementaryTreatise on Maritime International Law, adopted by royal order as a text-book in thenaval schools of Spain, and published at Madrid in 1873, concludes his chapter 'Ofthe lawfulness of prizes' with these words: 'It remains to be added that the customof all civilized peoples excludes from capture and from all kind of hostility the [175U.S. 677, 707] fishing vessels of the enemy's coasts, considering this industry asabsolutely inoffensive, and deserving, from its hardships and usefulness, of thisfavorable exception. It has been thus expressed in very many internationalconventions, so that it can be deemed an incontestable principle of law, at leastamong enlightened nations.' Negrin, tit. 3, chap. 1, 310.

Carlos Testa, captain in the Portugese Navy and professor in the naval school atLisbon, in his work on Public International Law, published in French at Paris in 1886,when discussing the general right of capturing enemy ships, says: 'Nevertheless, inthis, customary law establishes an exception of immunity in favor of coast fishingvessels. Fishing is so peaceful an industry, and is generally carried on by so poorand so hardworking a class of men, that it is likened, in the territorial waters of theenemy's country, to the class of husbandmen who gather the fruits of the earth fortheir livelihood. The examples and practice generally followed establish this humaneand beneficent exception as an international rule, and this rule may be consideredas adopted by customary law and by all civilized nations.' Testa, pt. 3, chap. 2, in18 Bibliotheque International et Diplomatique, pp. 152, 153.

No less clearly and decisively speaks the distinguished Italian jurist, Pasquale Fiore,in the enlarged edition of his exhaustive work on Public International Law, published

at Paris in 1885-6, saying: 'The vessels of fishermen have been generally declaredexempt from confiscation, because of the eminently peaceful object of their humbleindustry, and of the principles of equity and humanity. The exemption includes thevessel, the implements of fishing, and the cargo resulting from the fishery. Thisusage, eminently humane, goes back to very ancient times; and although theimmunity of the fishery along the coasts may not have been sanctioned by treaties,yet it is considered to-day as so defintely established that the inviolability of vesselsdevoted to that fishery is proclaimed by the publicists as a positive rule ofinternational law, and is generally respected by the nations. Consequently we shalllay down the following rule: (a) Vessels belonging to citizens of the enemy state,and devoted to fish- [175 U.S. 677, 708] ing along the coasts, cannot be subjectto capture; (b) Such vessels, however, will lose all right of exemption, whenemployed for a warlike purpose; (c) there may, nevertheless, be subjected tocapture vessels devoted to the great fishery in the ocean, such as those employed

in the whale fishery, or in that for seals or sea calves.' 3 Fiore, 1421


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This review of the precedents and authorities on the subject appears to usabundantly to demonstrate that at the present day, by the general consent of thecivilized nations of the world, and independently of any express treaty or otherpublic act, it is an established rule of international law, founded on considerations ofhumanity to a poor and industrious order of men, and of the mutual convenience ofbelligerent states, that coast fishing vessels, with their implements and supplies,cargoes and crews, unarmed and honestly pursuing their peaceful calling of catchingand bringing in fresh fish, are exempt from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if

employed for a warlike purpose, or in such a way as to give aid or information tothe enemy; nor when military or naval operations create a necessity to which allprivate interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high seain taking whales or seals or cod or other fish which are not brought fresh to market,but are salted or otherwise cured and made a regular article of commerce.

This rule of international law is one which prize courts administering the law ofnations are bound to take judicial notice of, and to give effect to, in the absence ofany treaty or other public act of their own government in relation to the matter.

Calvo, in a passage already quoted, distinctly affirms that the exemption of coast

fishing vessels from capture is perfectly justiciable, or, in other words, of judicialjurisdiction or cognizance. Calvo, 2368. Nor are judicial precedents wanting insupport of the view that this exemption, or a somewhat analogous one, should berecognized and declared by a prize court. [175 U.S. 677, 709] By the practice ofall civilized nations, vessels employed only for the purposes of discovery or scienceare considered as exempt from the contingencies of war, and therefore not subjectto capture. It has been usual for the government sending out such an expedition togive notice to other powers; but it is not essential. 1 Kent, Com. 91, note; Halleck,chap. 20, 22; Calvo, 2376; Hall, 138.

In 1813, while the United States were at war with England, an American vessel onher voyage from Italy to the United States was captured by an English ship, andbrought into Halifax, in Nova Scotia, and, w ith her cargo, condemned as lawful prizeby the court of vice admiralty there. But a petition for the restitution of a case ofpaintings and engravings which had been presented to and were owned by theAcademy of Arts in Philadelphia was granted by Dr. Croke, the judge of that court,who said: 'The same law of nations, which prescribes that all property belonging tothe enemy shall be liable to confiscation, has likewise its modifications andrelaxations of that rule. The arts and sciences are admitted amongst all civilizednations, as forming an exception to the severe rights of warfare, and as entitled tofavor and protection. They are considered, not as the peculium of this or of thatnation, but as the property of mankind at large, and as belonging to the commoninterests of the whole species.' And he added that there had been 'innumerablecases of the mutual exercise of this courtesy between nations in former wars.' TheMarquis de Somerueles, Stewart Adm. (Nova Scotia) 445, 482.

In 1861, during the war of the Rebellion, a similar decision was made in the districtcourt of the United States for the eastern district of Pennsylvania, in regard to twocases of books belonging and consigned to a university in North Carolina. Judge

Cadwalader, in ordering these books to be liberated from the custody of the marshaland restored to the agent of the university, said: 'Though this claimant, as theresident of a hostile district, would not be entitled to restitution of the subject of acommercial adventure in books, the purpose of the shipment in question gives to ita different [175 U.S. 677, 710] character. The United States, in prosecutinghostilities for the restoration of their constitutional authority, are compelledincidentally to confiscate property captured at sea, of which the proceeds wouldotherwise increase the wealth of that district. But the United States are not at warwith literature in that part of their territory.' He then referred to the decision inNova Scotia, and to the French decisions upon cases of fishing vessels, as

precedents for the decree which he was about to pronounce; and he added that,without any such precedents, he should have had no difficulty in liberating thesebooks. The Amelia,1 4 Phila. 417.

In Brown v. United States, 8 Cranch, 110, 3 L. ed. 504, there are expressions ofChief Justice Marshall which, taken by themselves, might seem inconsistent with theposition above maintained, of the duty of a prize court to take judicial notice of arule of international law, established by the general usage of civilized nations, as tothe kind of property subject to capture. But the actual decision in that case, and theleading reasons on which it was based, appear to us rather to confirm our position.The principal question there was whether personal property of a British subject,found on land in the United States at the beginning of the last war with GreatBritain, could lawfully be condemned as enemy's property, on a libel filed by theattorney of the United States, without a positive act of Congress. The conclusion of

the court was 'that the power of confiscating enemy property is in the legislature,and that the legislature has not yet declared its will to confiscate property whichwas within our territory at the declaration of war.' 8 Cranch, 129, 3 L. ed. 510, 511.In showing that the declaration of war did not, of itself, vest the Executive withauthority to order such property to be confiscated, the Chief Justice relied on themodern usages of nations, saying: 'The universal practice of forbearing to seize andconfiscate debts and credits, the principle universally received that the right to themrevives on the restoration of peace, would seem to prove that war is not an absoluteconfiscation of this property, but simply confers the right of confiscation,' and again:'The modern rule, then, would seem to be that tangible property [175 U.S. 677,711] belonging to an enemy, and found in the country at the commencement ofwar, ought not to be immediately confiscated; and in almost every commercialtreaty an article is inserted stipulating for the right to withdraw such property.' 8Cranch, 123, 125, 3 L. ed. 509. The decision that enemy property on land, which by

the modern usage of nations is not subject to capture as prize of war, cannot becondemned by a prize court, even by direction of the Executive, without expressauthority from Congress, appears to us to repel any inference that coast fishingvessels, whic

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